Keith Pardue, Vice President, Texas State Board of Veterinary Medical Examiners, et al. v. Ronald S. Hines

Q UE ST IONS P RES ENT ED Dr. Ronald S. Hines seeks to maintain an exclusively online veterinary practice, using his website to receive medical records and exchange emails with animal owners so he may provide veterinary care. This practice runs afoul of Texas law. Section 801.351 of the Texas Occupations Code generally requires a veterinarian to physically examine an animal before providing care for that animal. Hines brought this lawsuit contending that Texas’s physical-examination requirement violates the First Amendment of the U.S. Constitution, as applied to the States through the Fourteenth Amendment. Contrary to a recent decision from the Texas Supreme Court about how to assess First Amendment challenges to professional regulations, the Fifth Circuit agreed, holding that the challenged statute “primarily regulated Dr. Hines’s speech,” thus warranting heightened First Amendment scrutiny. Accordingly, the questions presented are:

1. Whether professional conduct regulations that incidentally burden speech are subject to heightened First Amendment scrutiny.

2. Assuming heightened scrutiny applies, whether Texas’s physical-examination requirement satisfies it. (I)